Same-Sex Adoptions

It is legal for LGBTQ+ parents to adopt a child. However, many LGBTQ+ parents still face discrimination from public and private adoption agencies. International child adoption can be even more complicated for same-sex adoptive parents. Even though there are still many challenges for homosexual couples looking to adopt a child in need, adoption is very rewarding for parents and children. An experienced adoption attorney can help you understand your options and navigate the adoption process.

Adoption by Same-Sex Parents

Adoption is the legal process where a child becomes a permanent legal member of another family. Once adopted, the child has the same legal rights as a biological child. Adoption agencies or an adoption lawyer can help you understand your adoption rights. They can also help you understand the timeline, costs, and challenges involved in an adoption.

It is only recently that same-sex couples have been able to adopt a child in the United States. The Supreme Court took the first step in that direction in 2015 with a ruling concerning federal marriage equality in the landmark case of Obergfell v. Hodges. ​The Court decision legalized homosexual marriage. However, even though it is now legal for gay and lesbian parents to adopt a child, many LBTQ+ parents still face discrimination from public and private adoption agencies.

After deciding to adopt a child, the parents must be eligible and approved for adoption. Prospective parents may be eligible to adopt a child regardless of their marital status, sexual orientation, or age. So, gay, and lesbian adoption is allowed in all 50 states.

Each state has its own adoption laws and eligibility regulations. If a couple is eligible, they may have to go through a probationary period, including getting a home study completed, to be approved.

Restrictions for Adoptive Parents

In most states, any adult or married couple can adopt a child, whether they are a single gay man or a lesbian couple. Some states have an age restriction, requiring adoptive parents to be over age 21 or 25—but this restriction applies to anyone adopting, regardless of sexual orientation. The adoptive parents may also have to be a certain number of years older than the prospective child to be adopted; again, this is not a restriction unique to homosexual individuals or couples.

State Examples of Same-Sex Adoption

Since adoption is governed by state laws, which vary, requirements for adoption and restrictions will also be different depending on what state you’re in. Below are a few examples.

For example, in Texas, prospective adoptive parents must meet the following requirements to adopt a child through the foster care system:

• Be at least 21 years old, financially stable, mature, and responsible
• Complete an application
• Go through a background check
• All adults in the household must have a criminal background check and an abuse/neglect check
• Provide relative and non-relative references
• Home study
• Attend a free training

The Texas Adoption Resource Exchange (TARE) has many helpful resources to adopt a child in Texas.

In Florida, prospective adoptive parents can be married or single. They also must go through a home study that includes a background check, reference check, interviews, and home inspections. The Florida Department of Children and Families Adopt Florida website has resources to help you adopt a child in Florida.

Prospective adoptive parents must meet the following requirements in Alabama in order to adopt through the Department of Human Resources:

• Be over 19 years old
• If married, the marriage’s duration must be at least 3 years
• If married, at least one spouse must be a U.S. citizen
• Have adequate housing and personal space for the child
• Be healthy enough to take care of the child
• Undergo a thorough background check, including criminal history

Types of Adoption

The first step in adoption involves deciding to adopt. Then you must decide what type of adoption you wish to pursue.

Independent Adoption

Independent adoption, also known as private adoption, is done either directly through the birth mother (and birth father if involved) or through an adoption agency. An adoption agency can assist with both domestic adoptions and international adoptions.

In a private adoption or independent adoption process, it may be up to the prospective birth parents to decide who can adopt their child. Even if the state allows same-sex parents to adopt a child in a private adoption, the birth mother may not want same-sex married couples to adopt their child. However, private adoption agencies can help assure birth parents that the couple’s home environment, family support system, financial stability, and background support a safe environment for the child.

Foster-to-Adopt

If you don’t wish to pursue an independent adoption, the other option is to go through your state’s foster care system. First, you’d likely need to become an approved foster parent where a foster child would be placed in your care by a social worker. This option doesn’t always result in a child being adopted as the child may be returned to their birth parents. It could take some time before a child is able to be adopted through foster care.

Many adoptions go through the foster care system. Foster care parents take in a child for temporary care and may eventually be a suitable child for adoption—meaning the state courts have decided the child will not be returned to their birth parents and will be eligible to be adopted. Some states require prospective adoptive parents to be approved as a foster care home before the state approves the parents for adoption, even if the parents never take in foster children. This process can take time before official adoption proceedings can begin.

Pros and Cons of Different Options

There are advantages and disadvantages to foster-to-adopt adoption plans and going through independent/private adoptions. In the foster-to-adopt, the cost may be reduced overall and you may get valuable adoption services provided at no cost by the state. Though, it could take quite a bit longer to finally adopt a child into your family. 

In independent adoptions, you may have more direct contact with prospective birth mothers and have more information about the birth family than you would from a child coming through foster care. But the cost of doing a private adoption may be significantly higher since you may have to pay the social worker to do your home study, and pay medical expenses like prenatal care for the birth mother as part of the adoption plan. The costs could be even more if you choose to adopt internationally in an agency-assisted adoption.

Adopting Your Stepchild

Thirdly, there’s also second-parent adoption or stepparent adoption, where a second adult, such as a stepmother or stepfather, can adopt their partner’s biological child. A second parent adoption lets their partner keep their parental rights. Read more about second parent/stepparent adoptions here.

Adoption Challenges Faced by Same-sex Couples

While adoption opportunities for same-sex couples should be the same as for heterosexual couples in the United States. Unfortunately, gay or lesbian couples may have different experiences dealing with private adoptions or international adoptions than heterosexual couples. 

A Supreme Court ruling found that religious adoption agencies can refuse to approve same-sex couples for adoption. Faith-based adoption agencies can refuse to work with same-sex foster parents and couples looking to adopt a child. This may limit the adoption opportunities of gay or lesbian couples to adopt a child through faith-based adoption providers and such couples should factor this information in when determining their adoption plan.

International Same-Sex Adoption

Foreign countries have requirements for who can adopt a child in the country. For example, the U.K., including England, Scotland, and Wales, allows gay couples to adopt in the country.

But can gay couples in the U.S. adopt internationally from other countries? Many countries have specific requirements when a family wants to adopt a child from those countries. While same-sex couples can adopt internationally in some countries, they may not have as much choice in which country their prospective adoptive child may come from. Religious or faith-based adoption agencies may also have specific restrictions for adoptive families.

In fact, many countries discriminate against would-be adoptive families in the LGBTQ+ community. For instance, China requires the adoptive parents to be in a heterosexual marriage. Other countries, such as Canada, France, and the U.K., allow for same-sex couple adoptions without prejudice due to the sexual orientation of prospective parents.

For international adoption, LGBT couples need to comply with all state adoption laws, U.S. immigration laws, and the law of the child’s country of origin. Some foreign countries do not allow homosexual couples to adopt. In some countries, a gay couple or lesbian parents may be able to have one parent adopt the child and then complete the adoption as a stepparent when the child is in the U.S. Some adoption agencies can work specifically with same-sex couples to navigate international adoptions.

It is highly recommended that you take the time to research the position of any country you wish to adopt a child from before proceeding further with any adoption plans, given that each nation has its own laws concerning this subject matter. There are several reputable adoption agencies that can guide you through the process of international adoption for couples in same-sex marriages, and these agencies are typically aware of the regions where it is allowable for members of the LGBTQ+ community to adopt a child.

How Can an Adoption Attorney Help?

An experienced adoption attorney can help homosexual couples navigate the adoption process. Adoption lawyers can also help couples through international adoptions that may be more challenging for couples in a same-sex marriage or unmarried couples. Having an advocate to guide you through the process can remove some barriers to adoption and avoid any unnecessary surprises.